[Ord. No. 1383 §1, 11-8-2007]
Any Sections of the Pagedale City Code in contrast to Sections 67.2675 through 67.2714, RSMo., shall hereby be repealed; provided that if any portion of the Sections 67.2675 through 67.2714, RSMo., be inclusive, or determined to be invalid, this Section
635.010 shall be of no force and effect and the repealed City Code Sections shall continue in effect until or unless subsequently modified or repealed; and further provided that nothing herein shall be deemed to alter the continuing obligations set forth in Section
635.020(F) of this Chapter.
[Ord. No. 1383 §2, 11-8-2007]
A. Definitions. The words and phrases used in this Section
shall have the meaning as set forth in Section 67.2677, RSMo., or,
if not defined therein, shall have such meanings as established by
City Code.
B. Franchise Fee. Pursuant to Section 67.2689, RSMo., and as
partial compensation for use of the City's public rights-of-way, each
video services provider or other person providing cable services or
video services within the City shall, to the extent permitted by law,
pay to the City a fee of eight percent (8%) of the gross revenues
from such video services provider in the geographic area of the City.
Such payment shall be made as required by Section 67.2689, RSMo. The
City shall have the right to audit any video services provider as
authorized by Section 67.2691, RSMo. Late payments shall accrue interest
due to the City compounded monthly at one and one-half percent (1.5%)
or such other maximum rate as may be established by law.
C. Customer Service Requirements. All video services providers
providing service within the City shall adopt and comply with the
minimum customer service requirements set forth in Section 67.2692,
RSMo. Notice or receipt of this Chapter by the video services provider
shall be deemed notice of the City invoking such customer service
requirements.
D. Rights-Of-Way Regulation — Indemnification — Permits
And Compliance With Other Laws. Video services providers shall comply with the requirements of Sections 67.2707, 67.2709 and all applicable ordinances and regulations consistent with Sections 67.1830 to 67.1846, RSMo., relating to use of the City rights-of-way. Each video services provider shall indemnify and hold harmless the City and its officers, employees and agents from any loss or damage, including, but not limited to, attorneys' fees, as provided in such ordinances or regulations, but in no event less than the obligation on video services providers set forth in Section 67.2695, RSMo. The City may require documentation of such indemnification by written agreement or other instrument to the extent permitted by law. In addition, video services providers shall be subject to and comply with such supplementary provisions relating to placement, screening and relocation of facilities as provided in Section
635.030 of this Chapter and such other applicable laws of the City, except as may be otherwise validly pre-empted. Notwithstanding any other ordinance to the contrary, no facilities to be used for video services shall be installed without obtaining a permit from the City authorizing the location and plans for such facilities; provided that this provision shall not apply to installation of otherwise lawful and authorized poles or wires.
E. Public Educational And Governmental Channels. Each video
services provider shall designate a number of channels for public,
educational and governmental programming consistent with Section 67.2703,
RSMo.; provided that any greater number of channels, as may be required
in the incumbent cable franchise or franchise ordinance, shall be
required pursuant to Section 67.2703.2, RSMo. The City shall bear
no cost relating to the transmission, availability or maintenance
of such channels unless expressly authorized by the City in writing
and approved by the Governing Body. Incumbent cable operators and
other video services providers shall provide support for such public,
educational and governmental channels consistent with Section 67.2703.8,
RSMo.
F. Continued Obligations. The obligations of a cable service
provider or video services provider as set forth in any existing cable
services or video services franchise or ordinance shall also continue
to apply to the full extent permitted by applicable law.
G. Reservation Of Rights. The City retains all rights in Sections
67.2675 through 67.2714, RSMo., inclusive, and may take any and all
actions permitted by law to exercise such rights or to enforce such
obligations on providers of video services.
H. Notice. A copy of this Chapter shall be delivered to each
video services provider operating in the City after notice to the
City that such provider is authorized to provide service within the
City; provided that the provisions of this Chapter shall, to the extent
permitted by law, not be affected by any claimed or actual failure
of a service provider to have received delivery of a copy of this
Chapter.
[Ord. No. 1383 §3, 11-8-2007]
A. Every
public utility, cable company, video services provider and other users
of the City rights-of-way or adjacent easements to provide services
shall comply with the supplemental regulations in this Section regarding
the placement of accessory utility facilities on public or private
property. For purposes of this Section, "accessory utility
facilities" shall mean such facilities, including pedestals,
boxes, vaults, cabinets, or other ground-mounted or below ground facilities
that directly serve the property or local area in which the facility
is placed, are not primarily for transmission or distribution to other
locations, do not materially alter the character of the neighborhood
or area, and otherwise are customarily found in such areas.
B. Except
where limited by other provisions of City ordinance, accessory utility
facilities shall be subject to the following supplementary regulations:
1. Approval — design — location — application. The design, location and nature of all accessory utility facilities
on private or public property shall require approval of the City,
which approval shall be considered in a non-discriminatory manner,
in conformance with this Chapter, and subject to reasonable permit
conditions as may be necessary to meet the requirements of this Chapter.
In considering applications for individual or multiple location applications,
the City shall review the request to ensure the proposed facilities
do not impair public safety, harm property values or significant sight
lines, or degrade the aesthetics of the adjoining properties or neighborhood,
and taking into consideration reasonable alternatives. Any material
changes or extensions to such facilities or the construction of any
additional structures shall be subject to the requirements and approvals
as set forth herein. Unless otherwise prohibited, utility facilities
subject to this Subsection may be located in minimum setback areas
provided that all other requirements are met. To the extent permitted
by Section 67.2707.3, RSMo., the time, method, manner or location
of facilities to be located in the rights-of-way may be established
or conditioned by the City to protect the rights-of-way or to ensure
public safety. An inspection fee shall be required as may be established
by the City for the costs of review and inspection of accessory utility
facilities as may be permitted by applicable law.
2. General regulations. The following general regulations
apply to all accessory utility facilities:
a. All such facilities shall be placed underground except as otherwise provided in Subsections
(3) and
(4) herein or as approved by special use permit.
b. All such facilities shall be constructed and maintained in such a
manner so as not to emit any unnecessary or intrusive noise.
c. All facilities and utility boxes shall be deemed abandoned after
six (6) continuous months of non-use and shall therefore be removed
within thirty (30) days thereafter at the cost of the utility.
d. Unless otherwise restricted, utility poles for authorized above ground
lines or facilities shall be permitted up to forty-five (45) feet
in height where utilities are not otherwise required to be placed
underground; provided that such poles shall be no higher than necessary,
maintained so as to avoid leaning from upright position, and without
use of guy wires crossing rights-of-way or pedestrian routes except
where approved by the City as necessary due to the lack of feasible
alternatives.
e. Utility facilities placed in designated historic areas may be subject
to additional requirements regarding the placement and appearance
of facilities as may be necessary to reasonably avoid or reduce any
negative impact of such placement.
f. Any damage to landscaping or vegetation on private or public property
during installation or maintenance of facilities shall be promptly
remedied by the facility owner.
g. At least forty-eight (48) hours prior to any installation, replacement
or expansion of any facility located on private property, the facility
owner shall provide notice to all property owners within one hundred
eighty-five (185) feet from the site. Notice shall include detailed
description of work to be done, the exact location of work and the
time and duration when it will be undertaken.
h. No facilities may be located so as to interfere, or be likely to
interfere, with any public facilities or use of public property.
i. All utility facilities not authorized by this Subsection or specifically
addressed elsewhere in this Code shall be authorized only as a special
use permit.
3. Residential districts. In residential districts,
accessory utility facilities less than three and one-half (3.5) feet
in height and covering less than eight (8) square feet in area may
be installed above ground with the prior approval of the City. Except
as otherwise may be authorized herein, any larger utility facility
shall be installed underground or authorized to be installed above
ground only by special use permit. All above ground facilities, where
authorized, shall be placed in the rear yard wherever practical. If
locating these facilities in the rear yard is not practical, then
such facilities may be located in the side yard. Such facilities shall
not be located in the front yard or within the public right-of-way
unless otherwise approved by the City upon a determination that all
other alternatives are not feasible.
4. Non-residential districts. In non-residential districts,
accessory utility facilities with a height of less than five (5) feet
and covering less than sixteen (16) square feet in area may be installed
above ground with the prior approval of the City. Except as otherwise
may be authorized herein, any larger utility facility shall be installed
underground or authorized to be installed above ground only by special
use permit. All above ground facilities, where authorized, shall be
placed in the rear yard wherever practical. If locating these facilities
in the rear yard is not practical, then such facilities may be located
in the side yard. Such facilities shall not be located in the front
yard or within the public right-of-way unless otherwise approved by
the City upon a determination that all other alternatives are not
feasible.
5. Landscape screening. A sight proof landscape screen
shall be provided for all authorized above ground facilities taller
than three (3) feet in height or covering in excess of four (4) square
feet in size. Such screen shall be required to sufficiently conceal
the facility. A landscape plan identifying the size and species of
landscaping materials shall be submitted by the utility and approved
by the City prior to installation of any facility requiring landscape
screening. The utility shall be responsible for the installation,
repair or replacement of screening materials. Alternative screening
or concealment may be approved by the City to the extent it meets
or exceeds the purposes of these requirements. Facilities located
in rear yards may be exempted from screening where located so as not
to be visible from (1) any public property and (2) more than two (2)
residential dwelling units.
6. Compliance with other laws. All accessory utility facilities shall be subject to all other applicable regulations and standards as established as part of the City Code including, but not limited to, building codes, zoning requirements and rights-of-way management regulations in addition to the supplementary regulations herein. The provisions of this Section
635.030 shall not apply to any circumstance or entity in which application under such circumstances is pre-empted or otherwise precluded by superseding law.
[Ord. No. 1478 §§1 — 2, 12-8-2011]
A. To the extent permitted by the 2007 Video Services Providers Act,
the City Council of the City of Pagedale, Missouri, hereby ratifies
all existing agreements, franchises, Code provisions and ordinances
regulating cable television operators and other service providers,
including the imposition of a franchise fee of eight percent (8%)
imposed on the gross revenues of all such providers and further declares
that such agreements, franchises and ordinances shall continue in
full force and effect until expiration as provided therein or until
pre-empted by the issuance of video service authorizations by the
Missouri Public Service Commission or otherwise by law, but only to
the extent of said pre-emption.
B. It shall be unlawful for any person to provide video services, as defined in Section
635.330, within the City of Pagedale, Missouri, without an agreement, franchise or ordinance approved by the City or a video service authorization issued by the Missouri Public Service Commission.
[Ord. No. 1479, 12-8-2011]
A. Definitions. As used in this Article, the following
terms shall have the following meanings unless otherwise defined by
context:
FRANCHISE AREA
The total geographic area of the City authorized to be served
by an incumbent cable television operator or incumbent local carrier
or affiliate thereof.
GROSS REVENUES
1.
The total amounts billed to subscribers or received by an entity
holding a video service authorization from advertisers for the provision
of video services within the City, including:
a.
Recurring charges video services;
b.
Even-based charges for video service, including, but not limited
to, pay-per-view and video-on-demand charges;
c.
Rental of set-top boxes and other video service equipment;
d.
Service charges related to the provision of video service, including,
but not limited to, activation, installation, repair and maintenance
charges;
e.
Administrative charges related to the provision of video service,
including, but not limited to, service order and service termination
charges; and
f.
A pro rata portion of all revenue derived, less refunds, rebates
or discounts, by a video service provider for advertising over the
video service network to subscribers, where the numerator is the number
of subscribers within the City and the denominator is the total number
of subscribers reached by such advertising; but gross revenues do
not include:
(1)
Discounts, refunds and other price adjustments that reduce the
amount of compensation received by an entity holding a video service
authorization;
(4)
Amounts billed to subscribers to recover taxes, fees or surcharges
imposed on subscribers or video service providers in connection with
the provision of video services, including the video service provider
fee authorized herein;
(5)
Fees or other contributions for PEG or 1-net support; or
(6)
Charges for services other than video service that are aggregated
or bundled with amounts billed to subscribers, provided that the video
service provider can reasonably identify such charges on books and
records kept in the regular course of business or by other reasonable
means.
2.
Except with respect to the exclusion of the video service provider
fee, gross revenues shall be computed in accordance with generally
accepted accounting principles.
HOUSEHOLD
An apartment, a house, a mobile home or any other structure
or part of a structure intended for residential occupancy as separate
living quarters.
LOW-INCOME HOUSEHOLD
A household with an average annual household income of less
than thirty-five thousand dollars ($35,000.00) as determined by the
most recent decennial census.
PERSON
An individual, partnership, association, organization, corporation,
trust or government entity.
SUBSCRIBER
Any person who receives video services in the franchise area.
VIDEO SERVICE
The provision of video programming provided through wireline
facilities, without regard to delivery technology, including Internet
protocol technology, whether provided as part of a tier, on-demand
or a per-channel basis, including cable service as defined by 47 U.S.C.
§ 522(6), but excluding video programming provided by a
commercial mobile service provider defined in 47 U.S.C. § 332(6)
or any video programming provided solely as part of and via a service
that enables users to access content, information, electronic mail
or other series offered over the public Internet.
VIDEO SERVICE AUTHORIZATION
The right of a video service provider or an incumbent cable
operator that secures permission from the Missouri Public Service
Commission pursuant to Section 67.2714, RSMo., to offer video service
to subscribers.
VIDEO SERVICE NETWORK
Wireline facilities, or any component thereof, that deliver
video service, without regard to delivery technology, including Internet
protocol technology or any successor technology. The term "video service
network" shall include cable television systems.
B. General Regulations.
1.
A video service provider shall provide written notice to the
City at least ten (10) days before commencing video service within
the City. Such notice shall also include:
a.
The name, address and legal status of the provider;
b.
The name, title, address, telephone number, e-mail address and
fax number of individual(s) authorized to serve as the point of contact
between the City and the provider so as to make contact possible at
any time [i.e., twenty-four (24) hours per day, seven (7) days per
week]; and
c.
A copy of the provider's video service authorization issued
by the Missouri Public Service Commission.
2.
A video service provider shall also notify the City, in writing,
within thirty (30) days of:
a.
Any changes in the information set forth in or accompanying
its notice of commencement of video service; or
b.
Any transfer of ownership or control of the provider's
business assets.
3.
A video service provider shall not deny access to service to
any group of potential residential subscribers because of the race
or income of the residents in the area in which the group resides.
A video service provider shall be governed in this respect by Section
67.2707, RSMo. The City may file a complaint in a court of competent
jurisdiction alleging a germane violation of this Section, which complaint
shall be acted upon in accordance with Section 67.2711, RSMo.
4.
A video service provider shall comply with all Federal Communications
Commission requirements involving the distribution and notification
of emergency messages over the emergency alert system applicable to
cable operators. Any video service provider other than an incumbent
cable operator serving a minority of the residents within the political
subdivision shall comply with this Section by December 31, 2007.
5.
A video service provider shall, at its sole cost and expense,
indemnify, hold harmless and defend the City, its officials, boards,
board members, commissions, commissioners, agents and employees, against
any and all claims, suits, causes of action, proceedings and judgment
(claims) for damages or equitable relief arising out of the construction,
maintenance, repair or operation of its video services network; copyright
infringements; and failure to secure from the owners, authorized distributors
or licenses or programs to be delivered by the video service network.
Such indemnification shall include, but is not limited to, the City's
reasonable attorney's fees incurred in defending against any
such claim prior to the video service provider assuming such defense.
The City shall notify the provider of a claim within seven (7) business
days of its actual knowledge of the existence of such claim. Once
the provider assumes the defense of the claim, the City may at its
option continue to participate in the defense at its own expense.
This indemnification obligation shall not apply to any claim related
to the provision of public, educational or governmental channels or
programming or to emergency interrupt service announcements.
C. Video Service Provider Fee.
1.
Each video service provider shall pay to the City a video service
provider fee in the amount of eight percent (8%) of the provider's
gross revenues on or before the last day of the month following the
end of each calendar quarter. The City may adjust the video service
provider fee as permitted in Section 67.2689, RSMo.
2.
A video service provider may identify and pass through on a
proportionate basis the video service provider fee as a separate line
item on subscribers' bill.
3.
The City, not more than once per calendar year and at its own
cost, may audit the gross revenue of any video service provider as
provided in Section 67.2691, RSMo. A video service provider shall
make available for inspection all records pertaining to gross revenues
at the location where such are kept in the normal course of business.
D. Customer Service Regulations.
1.
For purposes of this Section, the following terms shall mean:
NORMAL BUSINESS HOURS
Those hours during which most similar businesses in the community
are open to serve customers. In all cases the term "normal business
hours" must include evening hours at least one (1) night per week
or some weekend hours.
NORMAL OPERATING CONDITIONS
Those service conditions which are within the control of
the video service provider. Those conditions which are not within
the control of the video service provider include, but are not limited
to, natural disasters, civil disturbances, power outages, telephone
network outages and severe or unusual weather conditions. Those conditions
which are ordinary within the control of the video service provider
include, but not limited to, special promotions, pay-per-view events,
rate increases, regular peak or seasonal demand periods and maintenance
or upgrade of the video system.
2.
All video service providers shall adopt and abide by the following
minimum customer service requirements.
a.
Video service providers shall maintain a local, toll-free or
collect call telephone access line which may be available to subscribers
twenty-four (24) hours a day, seven (7) days a week.
b.
Video service providers shall have trained company representatives
available to respond to customer telephone inquiries during normal
business hours. After normal business hours, the access line may be
answered by a service or an automated response system, including an
answering machine. Inquiries received after normal business hours
shall be responded to, by a trained company representative, on the
next business day.
c.
Under normal operating conditions, telephone answer time by
a customer representative, including wait time, shall not exceed thirty
(30) seconds when the connection is made. If the call needs to be
transferred, transfer time shall not exceed thirty (30) seconds. These
standards shall be met no less than ninety percent (90%) of the time
under normal operating conditions, measured on a quarterly basis.
d.
Under normal operating conditions, the customer will receive
a busy signal less than three percent (3%) of the time.
e.
Customer service centers and bill payment locations shall be
open at least during normal business hours and shall be conveniently
located.
f.
Under normal operating conditions, each of the following standards
shall be met no less than ninety-five percent (95%) of the time measured
on a quarterly basis:
(1) Standard installation shall be performed within
seven (7) business days after an order has been placed. Standard installations
are those that are located up to one hundred twenty-five (125) feet
from the existing distribution system.
(2) Excluding conditions beyond the control of the
operator, the video service provider shall begin working on service
interruption promptly and in no event later than twenty-four (24)
hours after the interruption becomes known. The video service provider
must begin actions to correct other service problems the next business
day after notification of the service.
(3) The appointment window alternatives for installations,
service calls and other installation activities will be either a specific
time or, at maximum, a four-hour time block. The operator may schedule
service calls and other installation activities outside of normal
business hours for the express convenience of the customer.
(4) A video service provider shall not cancel an appointment
with a customer after the close of business on the business day prior
to the scheduled appointment.
(5) If a video service provider's representative
is running late for an appointment with a customer and will not be
able to keep the appointment as scheduled, the customer must be contacted.
The appointment shall be rescheduled, as necessary, at a time convenient
for the customer.
g.
Refund checks shall be issued promptly, but no later than either
a) the customer's next billing cycle following resolution of
the request or thirty (30) days, whichever is earlier or b) the return
of the equipment supplied by the video service provider if the service
is terminated.
h.
Credits for service shall be issued no later than the customer's
next billing cycle following the determination that a credit is warranted.
i.
Video service providers shall not disclose the name or address
of a subscriber for commercial gain to be used in mailing lists or
for other commercial purposes not reasonably related to the conduct
of the business of the video service provider or its affiliates as
required under 47 U.S.C. § 551, including all notice requirements.
Video service providers shall provide an address and telephone number
for a local subscriber to use without toll charge to prevent disclosure
of the subscriber's name or address.
3.
As required by Section 67.2692, RSMo., this Article
II, Section
635.320 et seq. shall be enforced only as follows:
a.
Each video service provider shall implement an informal process
for handling inquiries from the City and customers concerning billing
issues, service issues and other complaints. If an issue is not resolved
through this informal process, the City may request a confidential
non-binding mediation with the video service provider, with the costs
of such mediation to be shared equally between the City and the video
service provider.
b.
In this case of repeated, willful and material violations of
the provisions of this Section by a video service provider, the City
may file a complaint on behalf of a resident harmed by such violations
with Missouri's Administrative Hearing Commission seeking an
order revoking the video service provider's Public Service Commission
authorization. The City or a video service provider may appeal any
determination made by the Administrative Hearing Commission under
this Section to a court of competent jurisdiction, which shall have
the power to review the decision de novo. The City shall not file
a complaint seeking revocation unless the service provider has been
given sixty (60) days' notice to cure alleged breaches but has
failed to do so.
E. Public, Educational And Government Access Programming.
1.
Each video service provider shall designate the same number
of channels for non-commercial public, educational or governmental
(PEG) use as designated by the incumbent cable operator.
2.
Any PEG channel that is not substantially utilized by the City
may be reclaimed and programmed by the video service provider at the
provider's discretion. If the City finds and certifies that a
channel that has been reclaimed by a video service provider will be
substantially utilized, the video provider shall restore the reclaimed
channel within one hundred twenty (120) days. A PEG channel shall
be considered substantially utilized when forty (40) hours per week
are locally programmed on that channel for at least three (3) consecutive
months. In determining whether a PEG channel is substantially utilized,
a program may be counted not more than four (4) times during a calendar
week.
3.
The operation of any PEG access channel and the production of
any programming that appears on each such channel shall be the sole
responsibility of the City or its duly appointment agent receiving
the benefit of such channel, and the video service provider shall
bear only the responsibility for the transmission of the programming
on each such channel to subscribers. The City must deliver and submit
to the video service provider all transmissions of PEG content and
programming in a manner or form that is capable of being accepted
and transmitted by such video service provider holder over its network
without further alteration or change in the content or transmission
signal. Such content and programming must be compatible with the technology
or protocol utilized by the video service provider to deliver its
video services. The video service provider shall cooperate with the
City to allow the City to achieve such compatibility.
4.
The City shall make the programming of any PEG access channel
available to all video service providers in a non-discriminatory manner.
Each video service provider shall be responsible for providing the
connectivity to the City's or its duly appointed agent's
PEG access channel distribution points existing as of August 27, 2007.
Where technically necessary and feasible, video service providers
shall use reasonable efforts and shall negotiate in good faith to
interconnect their video service networks on mutually acceptable rates,
terms and conditions for the purpose of transmitting PEG programming.
A video service provider shall have no obligation to provide such
interconnection to a new video service provider at more than one (1)
point per headend, regardless of the number of political subdivisions
served by such headend. The video service provider requesting interconnection
shall be responsible for any costs associated with such interconnection,
including signal transmission from the origination point to the point
of interconnection. Interconnection may be accomplished by direct
cable microwave link, satellite or other reasonable method of connection
acceptable to the person providing the interconnect.
5.
The franchise obligation of an incumbent cable operator to provide
monetary and other support for PEG access facilities existing on August
27, 2007, shall continue until the date of franchise expiration (ignoring
any early termination by virtue of issuance of a video service authorization)
or January 1, 2012, whichever is earlier. Any other video service
provider shall have the same obligation to support PEG access facilities
as the incumbent cable operator, but if there is more than one (1)
incumbent, then the incumbent with the most subscribers as of August
27, 2007. Such obligation shall be prorated, depending on the nature
of the obligation, as provided in Section 67.2703 RSMo. The City shall
notify each video service provider of the amount of such fee on an
annual basis, beginning one (1) year after issuance of the video service
authorization.
6.
A video service provider may identify and pass through as a
separate line item on subscribers' bills the value of monetary
and other PEG access support on a proportionate basis.
F. Compliance With Other Regulations. All video service
providers shall comply with all other applicable laws and regulations.
G. This Section shall be in full force and effect from and after its
passage and it is recorded.